NO. 4-03-0178

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,

          Plaintiff-Appellee,

          v.

FREDERICK E. HOOD,

          Defendant-Appellant.	)

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)	  Appeal from

  Circuit Court of 

  Macoupin County

  No. 00CF236

  Honorable

  Joseph P. Koval,

  Judge Presiding.

________________________________________________________________

		JUSTICE TURNER delivered the opinion of the court:

		In December 2000, the State charged defendant, Freder

ick E. Hood, with reckless homicide, aggravated driving under the

influence of alcohol, illegal transportation of alcohol, and

failure to yield to a pedestrian in the crosswalk, all in connec

tion with a motor vehicle accident that resulted in a pedes

trian's death.  In May 2002, a jury found defendant guilty on all

four counts.  In June 2002, defendant filed a posttrial motion,

which the trial court denied.  In January 2003, the trial court

sentenced defendant to three years in prison on the reckless

homicide count.				

		On appeal, defendant argues (1) the trial court erred

in allowing certain expert and rebuttal testimony, (2) he was

denied a fair trial because of the prosecutor's alleged improper

statements during closing arguments, and (3) the State failed to

present evidence to sustain defendant's convictions for failure

to yield to a pedestrian in a crosswalk and illegal transporta

tion of alcohol.  We affirm in part, reverse in part, and remand for a new trial.

I. BACKGROUND

		On December 1, 2000, the State charged defendant by

information with the offense of aggravated driving under the

influence of alcohol (625 ILCS 5/11-501(d)(1)(C) (West 2000)),

alleging that on November 28, 2000, he drove a 1986 Dodge Ram

while under the influence of alcohol and was involved in a motor

vehicle accident resulting in great bodily harm, permanent

disability, or disfigurement to another and the proximate cause

of those injuries.  

		On December 27, 2000, the State charged defendant by

information with the offense of reckless homicide (720 ILCS 5/9-

3(a) (West 2000)), alleging he, while under the influence of

alcohol to a degree that rendered him incapable of safely driving

and while acting in a reckless manner, performed acts likely to

cause death or great bodily harm to an individual, in that he

operated his vehicle, and after disobeying a stop sign, he struck

a pedestrian in the crosswalk, causing the death of Marie L.

Schwab.  The State also charged defendant with the traffic

offenses of illegal transportation of alcohol (625 ILCS 5/11-

502(a) (West 2002)) and failure to yield to a pedestrian in the

crosswalk (625 ILCS 5/11-1002(a) (West 2002)).  Defendant pleaded

not guilty and requested a jury trial.

		In May 2002, defendant's jury trial commenced.  David

Smith testified he was driving with his girlfriend to pick up his

son from school on November 28, 2000.  He testified the inter- section of Main and Poplar in Mount Olive is a four-way stop.  As

he was stopped at the stop sign, he noticed a brown full-size van

approaching the intersection "at a pretty good rate of speed." 

After the van's driver "made the corner," Smith saw a woman

"about halfway through the crosswalk."  She held her left hand up

as to motion to the van's driver to stop, but the van struck the

woman as she was "in the crosswalk."  Smith observed the woman

"go through the air and land on the pavement," and he proceeded

to a nearby police station to summon help.  On his way, he

noticed the van's driver, identified as defendant, step out of

the van "and kind of stumble and lean against the door."  

		Tricia Marietta, Smith's girlfriend at the time of the

incident, testified the weather was overcast on November 28,

2000.  She stated Smith had stopped at the intersection when she

saw a vehicle that was not "slowing down" and hit the woman who

was walking.

		Ryan Gorman, a deputy with the Macoupin County sher

iff's department, testified he responded to the scene of the

accident on November 28, 2000.  Gorman observed defendant leaning

up against the side of his van holding a child.  Upon conversing

with defendant, Gorman noticed his eyes were "bloodshot and

glossy," and his breath had a "strong odor of alcoholic bever

age."  Further, Gorman found defendant's "speech was mumbled

together."  Gorman stated defendant told him he was coming from a

tavern in Mount Olive when he hit the victim.  After defendant

was arrested, Gorman conducted an inventory search of his van and found "a cooler that contained beer cans in it, some full, some

empty."  Gorman stated the beer was cold, and the cooler con

tained several open and full cans of beer.  Upon leaving an

officer's squad car to enter the hospital for a blood and urine

draw, defendant "was staggering and uneasy as he walked."  Based

on his experience, Gorman believed defendant was intoxicated. 

From the time of the accident to defendant's urine test, Gorman

stated he appeared "to be sobering up some."

		Dr. Travis Hindman, a forensic pathologist, testified

he performed an autopsy on Marie Schwab on December 19, 2000. 

Defense counsel stipulated to his credentials, and the trial

court recognized him as an expert.  Based on his expert opinion,

Dr. Hindman found the cause of death to be brain trauma due to

the injuries sustained in a pedestrian-vehicular collision.  Dr.

Hindman stated he has testified as a witness in the area of how

the body metabolizes alcohol after it has been ingested.  Defense counsel objected to Dr. Hindman testifying to any examination of

blood samples as he was only disclosed as performing the autopsy. 

The trial court sustained the objection.  

		John Tandy, a patrolman with the Mount Olive police

department at the time of the accident, testified that upon

asking defendant what happened, he told the officer he stopped at

the stop sign, turned left, heard a "thump or a thud," and

stopped.  Tandy noticed a strong odor of beer from defendant's

breath, and his eyes were "glassy and bloodshot."  Defendant

leaned up against the door of the van "the whole time."  Tandy asked defendant if he would be willing to undergo several field-

sobriety tests, including the one-legged stand, the nystagmus

test, and the turn-and-walk test, but he refused.  Defendant told

Tandy he had two beers at a local tavern.  Tandy also testified

to the cooler of beer found in defendant's van.  He recalled

seven unopened cans and five empty cans, with one open can

partially full of a substance that smelled like beer.  Tandy

transported defendant to the hospital and described him as

"uneasy on his feet," "stumbling," and "staggering a little bit." 

Tandy stated they waited an hour to an hour and a half before

defendant's blood and urine were collected.  During that time,

defendant stood leaning up against the wall, but he "sobered up

quite a bit."

		The parties stipulated that defendant's blood test

indicated a blood-alcohol content of 0.077.  The trial court

denied defendant's motion for directed verdict. 

		The defense called Bob Bonacorsi as its first witness. 

He testified he was driving west through Mount Olive on the date

of the incident.  He stated the sun was "so bad" that he had to

roll down his window to look out "because [he] couldn't see

anything."  Bonacorsi testified this occurred in close proximity

to the accident scene. 

		Danielle Shelton testified she saw defendant on the day

of the accident between 1:30 p.m. and 2 p.m. as she was

bartending at JC's Tavern.  Defendant came in the tavern with

"his little boy," stayed for 45 minutes, and had one beer.  Shelton stated defendant did not appear to be under the influence

of alcohol when he came in or when he left.

		Mary Joanne Cartwright, owner of JC's Tavern, testified

defendant came in the tavern on the date of the accident with his

infant son.  He did not appear to be under the influence of

alcohol to her.  She stated he had one beer. 

		Denise Vojas, a part-time employee at Tillie's Tavern

in Mount Olive, testified defendant entered the bar on the date

of the accident at around 1:30 p.m.  While in the bar, defendant

"had a bottle of Busch," ordered another, "drank half of it," and

left after 25 to 30 minutes.  According to Vojas, defendant did

not appear to be under the influence of alcohol before or after

he left.  

		Hervana Hood, defendant's mother, testified she was

called to the scene of the accident to pick up defendant's son. 

She saw defendant standing "straight" at the side of his van

holding his son.  She stated defendant "was really upset."  He

did not appear to have trouble standing and was not slurring his

words.  

		Defendant testified he kept a cooler in his van because

he lived in a dry county in Arkansas.  He stated the cooler

contained some full and empty cans, was behind the driver's seat,

and had been there for "a couple of days."  Defendant testified

he had three knee surgeries.  He stated he arrived in Mount Olive

from Arkansas at "about 1:30, 2 o'clock."  He stopped at JC's

Tavern to find "hired guns" to help him move some property.  He had one beer and stayed for about 30 minutes.  He left and went

to Tilley's and "ordered a beer so [he] wouldn't seem rude."  He

also drank part of a second beer.  

		Defendant testified he approached the intersection at

Poplar and Main in Mount Olive, and his son threw his bottle

causing defendant to look back at him after stopping at a stop

sign.  Defendant then started to make a turn, but the "sun was in

[his] eyes" and he "heard a thunk and immediately stopped."  He

did not see Schwab "in the crossroad."  He exited his vehicle,

yelled for help, and then attempted to comfort his crying son. 

Officer Tandy later told him he was under arrest for drunk

driving, and defendant asked to take a field-sobriety test, but

Tandy refused.  Officer Tandy later took him back to Mount Olive,

where defendant went to JC's Tavern to have a soda and find a

ride home.  

		On cross-examination, defendant stated the cooler still

had ice in it because he "put a blanket over it."  The empty beer

cans were in the cooler because he did not want to litter and his

13-year-old son recycles the cans.  He testified he never refused

to take any breath or blood tests.  

		Following defendant's testimony, defense counsel made a

motion in limine to exclude any rebuttal testimony from Dr. Hindman concerning blood-alcohol content.  The trial court denied

the motion.      		

		The State called Dr. Hindman in rebuttal.  The trial

court found Dr. Hindman to be qualified as an expert toxicolo gist.  Then, the State recalled Officer Tandy, who testified

defendant was 5 feet 7 inches tall and weighed 160 pounds on

November 28, 2000, based on his driver's license information. 

The State recalled Dr. Hindman to testify to a hypothetical as to

his opinion on the blood-alcohol level for an individual, 5 feet

7 inches tall, 160 pounds, having 2.5 to 2.75 12-ounce beers at

around 2:30 p.m. and blood tested at 5:40 p.m.  Dr. Hindman

opined the blood-alcohol level of that individual at that time

would be 0.0255.  If a hypothetical person had a 0.077 blood-

alcohol level at 5:40 p.m., based on the rate of reduction, the

person's level at 3 p.m. would have been 0.114.

		Officer Gorman testified in rebuttal that defendant

refused to submit to any field-sobriety tests.  Following closing

arguments, the jury found defendant guilty of reckless homicide

based upon driving under the influence of alcohol, aggravated

driving under the influence of alcohol involving a personal

injury motor vehicle accident, illegal transportation of alcohol

in a motor vehicle, and failure to yield to a pedestrian in a

crosswalk.  

		In June 2002, defendant filed a posttrial motion,

arguing, inter alia, the trial court erred in allowing Dr. Hindman to testify as a rebuttal witness.  In November 2002, the

trial court denied the motion.  In January 2003, the trial court

sentenced defendant to three years in prison on the reckless

homicide count.  The court found the offense of aggravated

driving under the influence was a lesser-included offense of reckless homicide and vacated the jury verdict on the former

offense.  This appeal followed.     

II. ANALYSIS

A. Dr. Hindman's Testimony

		Defendant argues the trial court erred in allowing Dr.

Hindman to testify to reverse extrapolation in his rebuttal

testimony.  We agree.

		In its February 2001 answer to discovery, the State

listed Dr. Hindman as the Sangamon County coroner and as a

possible witness, along with attaching the forensic scientist

report.  During defendant's jury trial, defense counsel objected

to Dr. Hindman's proposed testimony regarding reverse extrapola

tion of alcohol since he was disclosed as the one who conducted

the autopsy of the victim.  The trial court sustained the objec

tion, finding the State could not elicit testimony from Dr.

Hindman concerning reverse extrapolation in its case in chief

because it failed to apprise defense counsel of the proposed

testimony in pretrial discovery.  After defendant testified, the

State noted its intention to call Dr. Hindman as a rebuttal

witness.  Defense counsel made a motion in limine to exclude Dr. Hindman's rebuttal testimony, which the trial court denied.  In

rebuttal, the trial court found Dr. Hindman qualified as an

expert in toxicology.

		Defendant's argument on appeal centers on whether (1)

Dr. Hindman had the qualifications to testify to reverse extrapo

lation, (2) the State's failure to disclose Dr. Hindman as an expert in reverse extrapolation was error, (3) Dr. Hindman's

testimony lacked a proper foundation, and (4) the trial court

erred in allowing Dr. Hindman's rebuttal testimony.

1. Expert Qualifications

		Defendant argues the State failed to establish Dr.

Hindman as an expert on reverse extrapolation.  We find defendant

has forfeited this argument on appeal.

		"To sustain an argument for appeal, both an objection

at trial and a written posttrial motion raising the objection are

required."  People v. Reynolds, 302 Ill. App. 3d 722, 730, 706 N.E.2d 49, 55 (1999), citing People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130 (1988).  Here, defendant failed to

raise the issue of Dr. Hindman's qualifications in his posttrial

motion, and defense counsel did not argue this issue at the

posttrial hearing.  Thus, defendant has forfeited this argument

on appeal.  

2. Failure To Disclose

		Defendant argues the State failed to disclose Dr.

Hindman as an expert in reverse extrapolation of alcohol, causing

him prejudice.  We agree.

		"[T]he purpose of the discovery rules is to protect the

accused against surprise, unfairness, and inadequate prepara

tion."  People v. Heard, 187 Ill. 2d 36, 63, 718 N.E.2d 58, 73 (1999).  Although compliance with discovery rules is mandatory,

the State's failure to comply with discovery rules does not

require reversal of a defendant's conviction absent a showing of surprise or unfair prejudice.  People v. Robinson, 157 Ill. 2d 68, 78, 623 N.E.2d 352, 357 (1993).  The defendant has the burden

of showing surprise or prejudice.  Heard, 187 Ill. 2d at 63, 718 N.E.2d at 74.

		Supreme Court Rule 412(a)(i) (188 Ill. 2d R. 412(a)(i))

requires the State, as part of pretrial discovery and upon the

defendant's request, to supply the defendant with the names of

persons whom the State intends to call as witnesses.  Supreme Court Rule 412(a)(iv) (188 Ill. 2d R. 412(a)(iv)) requires the

State to disclose "any reports or statements of experts, made in

connection with the particular case, including results of physi

cal or mental examinations and of scientific tests, experiments,

or comparisons, and a statement of qualifications of the expert."

		In this case, the State listed Dr. Hindman as a possi

ble witness in its pretrial discovery and attached the forensic

scientist report.  Defense counsel could thus reasonably conclude

Dr. Hindman would testify to the autopsy he performed on the

victim.  With nothing else, defense counsel could not reasonably

conclude prior to trial that Dr. Hindman would offer his exper

tise on reverse extrapolation of alcohol.  Had defense counsel

been aware of such testimony, he could have attempted to call his

own experts to refute Dr. Hindman's conclusions. 

		We recognize discovery in civil cases is conducted much differently than discovery in criminal cases.  For example,

Supreme Court Rule 213 (177 Ill. 2d R. 213(g)) governing civil

cases requires the parties to identify the subject on which the expert witnesses will testify as well as the opinions the experts

will offer.  This requirement is noticeably lacking in Rule 412. 

Nonetheless, we note that Rule 412(a)(iv) requires the State to

provide statements of experts regarding "scientific tests,

experiments, or comparisons" made by the experts.  188 Ill. 2d R.

412(a)(iv).  Here, the doctor used extrapolation to compare a

hypothetical person's blood-alcohol concentration to the extrapo

lated blood-alcohol concentration of defendant if defendant had

consumed 2 3/4 beers as he testified.  Thus, the State arguably

failed to disclose comparisons made by its expert under Rule

412(a)(iv).  Moreover, even if the calculations of the doctor

were not technically comparisons under the rule, its seems clear

his calculations regarding reverse extrapolation should have been

disclosed to defendant under the spirit of the rule.  Finally,

although these calculations were apparently not reduced to

writing prior to the doctor's testimony, we believe the State was

aware of the calculations before questions were posed to the

doctor.  

		As noted in People v. Sims, 244 Ill. App. 3d 966, 612 N.E.2d 1011 (1993), "[t]here are numerous criminal cases whereby

experts were allowed to testify even when their existence was not

fully disclosed or the gist of their testimony was not fully

revealed to defense counsel."  Sims, 244 Ill. App. 3d at 993, 612 N.E.2d at 1032-33, citing People v. Carr, 188 Ill. App. 3d 458, 544 N.E.2d 978 (1989); People v. Fleming, 155 Ill. App. 3d 29, 507 N.E.2d 954 (1987); People v. Scheidt, 142 Ill. App. 3d 844, 492 N.E.2d 248 (1986); People v. Jackson, 131 Ill. App. 3d 128, 474 N.E.2d 466 (1985); People v. Taylor, 107 Ill. App. 3d 1019, 438 N.E.2d 565 (1982); People v. Davis, 105 Ill. App. 3d 129, 434 N.E.2d 13 (1982).  Although several of these cases questioned

whether any discovery violation had occurred, none based its

decision on that issue alone.  Instead, all of the courts ulti

mately hinged their decisions on whether the defendant had been

unfairly surprised and prejudiced.  

		Here, the State indicated it did not know Dr. Hindman

was qualified to testify to reverse extrapolation until the

afternoon of the trial's first day.  The trial court noted that

if it was a surprise to the State, it was "a bigger surprise to

the defendant."  Moreover, the State had evidence in the toxicol

ogy reports that defendant's blood-alcohol level was 0.077 at

5:40 p.m.  The State should have foreseen expert testimony would

be needed if it desired to present evidence of defendant's blood-

alcohol level at the time of the accident.  This should have been

presented in the State's case in chief, but as stated, the trial

court prohibited the State's belated attempt to present the

evidence because of prejudice to defendant due to lack of notice. 

However, admitting the doctor's testimony as rebuttal evidence

did not lessen the prejudice to defendant, and we are not per

suaded this prejudice may be ignored merely because the evidence

was used as "rebuttal."  

		"The duty to disclose rebuttal witnesses, as with all

witnesses, arises when the State has formed the intent to call

such a witness."  People v. Bock, 242 Ill. App. 3d 1056, 1067, 611 N.E.2d 1173, 1181 (1993).  

		"The law regarding disclosure of rebuttal

witnesses in criminal cases is well settled. 

Until the prosecutor forms the intent to call

the witness, disclosure is not required.

[Citation.]  This court has held that

'[b]ecause the State may not know if a wit

ness will be called in rebuttal until the

defense testimony is heard, the State need

not inform the defense of its intention to

call a rebuttal witness until that intention

is formed.'  [Citation.]  When the State

fails to make timely disclosure of a rebuttal

witness, the trial court is not required to

exclude the rebuttal witness' testimony. 

(People v. Bock (1993), 242 Ill. App. 3d 1056, 1068, 611 N.E.2d 1173[, 1181]).)  In

Bock, defendant objected to the State's deci sion to call a rebuttal witness who was iden

tified on the morning of the trial.  Defen

dant alleged that, because the witness was

disclosed on the day of the trial, he had not

had an opportunity to do any investigation. 

However, defendant did not request a continu

ance and the court allowed the witness to

testify.  On appeal, the appellate court held that the defendant was not prejudiced by the

testimony of the rebuttal witness.  (Bock, 242 Ill. App. 3d at 1069[, 611 N.E.2d at

1182]).)  The court reasoned that defendant

had an opportunity to interview the rebuttal

witness, failed to request a continuance to

conduct further investigation and cross-exam

ined the witness during trial."  People v. Weber, 264 Ill. App. 3d 310, 315-16, 636 N.E.2d 902, 906 (1994).

		Here, after the trial court excluded Dr. Hindman's

testimony in the State's case in chief, the State could then have

indicated its intention to call him on rebuttal if defendant

decided to testify.  Instead of informing defendant then, the

State waited until after defendant testified and then sought to

offer Dr. Hindman's testimony on rebuttal.  While we agree the

State cannot know with certainty the substance of a given defen

dant's testimony, here, we note the State in its case in chief

had already elicited Tandy's testimony that defendant claimed he

had consumed only two beers. 

		More troublesome is the nature of this "rebuttal"

testimony.  The testimony was not presented to counter a defense

witness's testimony on defendant's blood-alcohol concentration. 

Instead, the State argues the testimony was offered to rebut

defendant's testimony that he had consumed 2 3/4 beers.  However,

the doctor's evidence went beyond rebutting defendant's claim and beyond rebutting the testimony of defendant's lay witnesses, who

opined defendant was not under the influence of alcohol.  The

doctor's testimony allowed the State to request and be given the

third paragraph of Illinois Pattern Jury Instructions, Criminal,

No. 23.30, which instructs the jury in pertinent part that "[i]f

you find beyond a reasonable doubt that at the time the defendant

drove a vehicle that the amount of alcohol concentration in the

defendant's blood or breath was 0.08 or more, you may presume

that the defendant was under the influence of alcohol."  Illinois

Pattern Jury Instructions, Criminal, No. 23.30 (4th ed. 2000)

(hereinafter IPI Criminal 4th No. 23.30)).  Thus, the doctor's

testimony, if believed, did more than simply rebut defendant's

evidence.  It introduced into the case a presumption against

defendant and in favor of the State. 

		The trial court abuses its discretion when it fails to

eliminate the prejudice against defendant by a discovery viola

tion.  People v. Hood, 229 Ill. App. 3d 202, 216, 593 N.E.2d 805, 815 (1992).  Because of the prejudice to defendant here and given

the unique circumstances of this case, we find the trial court

abused its discretion in allowing Dr. Hindman's testimony on

rebuttal.  Accordingly, defendant's conviction for reckless homicide must be reversed and a new trial ordered.  Because of

our decision to reverse defendant's reckless homicide conviction,

we need not address his remaining issues on Dr. Hindman's rebut

tal testimony and the State's closing arguments.

B. Guilt Beyond a Reasonable Doubt

		Defendant argues the State's evidence was insufficient

to sustain the convictions for failure to yield to a pedestrian

in a crosswalk and for illegal transportation of alcohol.  We

disagree.

		When reviewing a challenge to the sufficiency of the

evidence, in a criminal case, the relevant inquiry is whether,

when viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. 

People v. Pollock, 202 Ill. 2d 189, 217, 780 N.E.2d 669, 685 (2002).  The trier of fact has the responsibility to determine the credibility of witnesses and the weight given to their

testimony, to resolve conflicts in the evidence, and to draw

reasonable inferences from that evidence.  People v. Ortiz, 196 Ill. 2d 236, 259, 752 N.E.2d 410, 425 (2001).  A court of review

will not overturn the verdict of the fact finder "unless the

proof is so improbable or unsatisfactory that there exists a

reasonable doubt of the defendant's guilt."  People v. Maggette, 195 Ill. 2d 336, 353, 747 N.E.2d 339, 349 (2001).

1. Failure To Yield to a Pedestrian in a Crosswalk

		Section 11-1002(a) of the Illinois Vehicle Code pro

vides as follows:

			"When traffic control signals are not in

place or not in operation the driver of a

vehicle shall yield the right-of-way, slowing down or stopping if need be to so yield, to a

pedestrian crossing the roadway within a

crosswalk when the pedestrian is upon the

half of the roadway upon which the vehicle is

traveling, or when the pedestrian is

approaching so closely from the opposite half

of the roadway as to be in danger."  625 ILCS

5/11-1002(a) (West 2002). 

		At trial, David Smith testified he witnessed defen

dant's van strike Schwab while she was in the crosswalk.  He

stated defendant's van approached the intersection "at a pretty

good rate of speed," and the pedestrian in the crosswalk held her

hand up as if to motion for the driver to stop his vehicle.  The

testimony presented clearly indicated it was defendant's van that

struck Schwab.  Smith stated the impact threw Schwab "about five

feet," and defendant's van was not in the intersection when it

came to a stop.  Based on the testimony and evidence presented, a

reasonable jury could find Schwab was in the crosswalk when she

was struck by defendant's van.

2. Illegal Transportation of Alcohol

		Section 11-502(a) of the Illinois Vehicle Code

provides, in part, as follows:

		"[N]o driver may transport, carry, possess[,]

or have any alcoholic liquor within the pas

senger area of any motor vehicle upon a high

way in this State except in the original container and with the seal unbroken."  625

ILCS 5/11-502(a) (West 2002).

		At trial, Deputy Gorman testified he found a cooler in

defendant's van containing full and empty beer cans.  Tandy also

testified to the cooler containing unopened and empty beer cans,

along with one can partially full of a substance that smelled

like beer.  He stated one can of Busch beer was standing upright

in the cooler and was partially full.  He had occasion in the

past to smell beer, and he stated the remaining liquid in the can

"smelled like beer."  The State's failure to introduce testimony

concerning a chemical analysis of the liquid in the beer cans

does not preclude a finding of guilt.  People v. Angell, 184 Ill. App. 3d 712, 717, 540 N.E.2d 1106, 1109 (1989).  Defendant does

not argue Tandy was not competent to testify to his observations

and opinion that the partially full can in the cooler contained

beer at the time of the accident.  Defendant admitted having full

and empty beer cans in the cooler, but denied one can was par

tially full.  The jury had the responsibility to resolve these

conflicts in the evidence, and sufficient evidence was presented

to establish defendant's guilt beyond a reasonable doubt.   

III. CONCLUSION

		For the reasons stated, we affirm in part, reverse in

part, and remand for a new trial.  As we are remanding this cause for a new trial, we find the record contains sufficient evidence

for the jury to have found defendant guilty of reckless homicide

and aggravated driving under the influence of alcohol beyond a reasonable doubt.  Thus, no double jeopardy violation will occur

upon retrial.  In re R.A.B., 197 Ill. 2d 358, 369, 757 N.E.2d 887, 894 (2001).  This conclusion does not imply a determination

of defendant's guilt or innocence that would be binding on

retrial.  R.A.B., 197 Ill. 2d at 369, 757 N.E.2d at 894. 

		Affirmed in part, reversed in part, and remanded for a

new trial.

		KNECHT, J., concurs.

		COOK, J., dissents.

		JUSTICE COOK, dissenting:

		I respectfully dissent and would affirm the decision of

the trial court.  I disagree with the trial court's exclusion of

Dr. Hindman's testimony regarding blood-alcohol levels during the

State's case in chief, but I agree with the court that the

testimony should at least have been admitted during rebuttal.    

		The evidence indicated defendant was drinking between

1:30 and 2 p.m. on the day of the accident.  The accident oc

curred shortly before 3 p.m.  Defendant's blood-alcohol level was

0.077% at 5:40 p.m.  Dr. Hindman testified that defendant's blood-

alcohol level at the time of the accident was probably 0.114%.  It

is common knowledge that immediately after the consumption of

alcohol, the body goes through a period of absorption, or rising

blood-alcohol level, and then through a process of elimination,

or falling blood-alcohol level.  People v. Beck, 295 Ill. App. 3d 1050, 1062, 693 N.E.2d 897, 905 (1998) (only natural for blood-

alcohol level to diminish after several hours).  Experts in other

cases have testified that alcohol is eliminated from the body at

an average rate of 0.015 to 0.02 per hour in 85% of males.  See

People v. Latto, 304 Ill. App. 3d 791, 797, 710 N.E.2d 72, 77 (1999).  Defendant's blood-alcohol level at 5:40 p.m. was only

0.003 less than 0.08.

		The basic rule of discovery in criminal cases is that

the State, upon written motion, is required to disclose the names

and addresses of witnesses.  188 Ill. 2d R. 412(a)(i).  The State is not required to set out what the witnesses will testify to, although the State is required to disclose any written or re

corded statements, or "substantially verbatim reports" of oral

statements, which of course may be used for impeachment.  188

Ill. 2d R. 412 (a)(i); cf. 188 Ill. 2d R. 412(a)(ii) (where the statement is made by the accused, the prosecution must disclose "the substance of any oral statement").  Absent a showing of an

intentional tactic to prevent disclosure, there is no requirement

that oral statements in the State's possession or control be

reduced to writing.  People v. Lasley, 158 Ill. App. 3d 614, 634, 511 N.E.2d 661, 676 (1987); People v. Williams, 262 Ill. App. 3d 808, 823-24, 635 N.E.2d 653, 664 (1994).  The question before the

court is whether the existing notes in the State's file consti

tute "substantially verbatim reports," not whether defense

counsel would be surprised, or whether it would be a good idea

for the State to prepare a more thorough report.  188 Ill. 2d R.

412(a)(i).  Defense counsel may avoid surprise by interviewing

the witnesses who have been disclosed.  Lasley, 158 Ill. App. 3d at 634-35, 511 N.E.2d at 675-76. 

		Rule 412 requires little more in the case of experts,

only the disclosure of their "reports or statements," including

results of examinations or tests, and disclosure of the expert's

qualifications.  188 Ill. 2d R. 412(a)(iv).  "Statements" appar

ently means formal statements similar to reports, or examination

and test results, and not everything that is said by an expert

prior to his testifying.  "Rule 412 does not require that every

conversation with witnesses during the course of investigation be reduced to writing."  People v. Davis, 105 Ill. App. 3d 129, 132, 434 N.E.2d 13, 15 (1982) (doctor and nurse allowed to testify in

reckless homicide case despite argument that listing of names was

insufficient to put defendant on notice they would be asked their

opinion on issue of intoxication).  

		The majority argues that the prosecution confused the

defense when it attached Dr. Hindman's autopsy report indicating

the cause of death and did not alert defense counsel to Dr.

Hindman's expertise in reverse extrapolation.  "Had defense

counsel been aware of such testimony, he could have attempted to

call his own experts to refute Dr. Hindman's conclusions."  Slip

op. at 11.  Really?  Defense counsel could not anticipate the

argument that a blood-alcohol level of 0.077 at 5:40 p.m. might

indicate a blood-alcohol level of more than 0.08 three hours

earlier?  In the unlikely event any expert would ever dispute

that defendant earlier had a blood-alcohol level greater than

0.077, defense counsel surely would have called him, whether Dr.

Hindman testified or not.  

		As the majority points out, civil discovery rules

require the parties to identify the subject on which the expert

witness will testify and the opinions the expert will offer.  177

Ill. 2d R. 213(g).  It is a mistake to introduce the complexities

of civil discovery rules into criminal cases.  See Weber, 264 Ill. App. 3d at 316, 636 N.E.2d at 906 ("defendant's reliance on

Supreme Court Rule 220 is misplaced").  The majority's argument

that the doctor's testimony, the doctor's calculations, should have been disclosed "under the spirit of the rule" (slip op. at

12) is not persuasive.  The best indicator of what was intended

by Rule 412 is its language, and that language does not require

disclosure of the substance of an expert's testimony.

		The fact that the State was aware of what Hindman would

testify to before questions were posed to him is irrelevant. 

Even with respect to exculpatory or mitigating information (where

the State has a special obligation), the duty to disclose "must

be viewed in light of the information available to the State when the material is disclosed."  (Emphasis added.)  188 Ill. 2d R. 412, Committee Comments, at lxviii.  The duty to disclose is not

"subject to continuous updating."  188 Ill. 2d R. 412, Committee

Comments, at lxviii. 

		As the majority points out, because the State may not

know if a witness will be called in rebuttal until the defense

testimony is heard, the State need not inform the defense of its

intention to call a rebuttal witness until that intention is

formed.  Slip op. at 14.  That is true even if the State knows

who the potential rebuttal witness is and even if the witness has

given a written statement.  The State need only disclose "persons

whom the State intends to call as witnesses."  188 Ill. 2d R.

412(a)(i).  The State may have been satisfied with its case in

chief, including Officer Tandy's testimony that defendant at the

scene had said he had only two beers, until defendant took the

stand and repeated that testimony under oath.  At that point the

State could properly have concluded that defendant was lying, and it needed something more to refute that lie.  The State was not

required to anticipate that defendant would perjure himself.  I

also reject the majority's argument that Dr. Hindman's testimony

did not rebut defendant's testimony that he had consumed less

than three beers.  Finally, I suggest that IPI Criminal 4th No.

23.30 could have been given even without Dr. Hindman's testimony. 

A reasonable jury could conclude that a defendant who has a

blood-alcohol level of 0.077 at 5:40 p.m. had a blood-alcohol

level greater than 0.08 before 3 p.m.  A jury may rely on its

common experiences in life, including the fact that the effects

of alcohol consumption diminish over a period of hours.